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The U.S. Supreme Court has long recognized that the “well-being of its children is of course a subject within the State’s constitutional power to regulate” and upheld content-based restrictions on speech — including complete bans on children’s access to certain material — that would not survive constitutional scrutiny if applied to adults.[1] These content-based restrictions are primarily aimed at constitutionally protected “indecent” material.[2] In such cases, the courts have not required the government to demonstrate to a scientific certainty that the speech at issue causes harm to minors.[3]

Nonetheless, the government’s interest in protecting children does not always outweigh the First Amendment considerations involved. The Supreme Court has struck down a regulation requiring cable operators either to scramblesexually explicit channels in full or to limit programming on such channels to certain hours, as well as a statute criminalizing the knowing transmission of obscene or indecent messages to minors over the Internet, on “overbreadth” grounds because they infringed on adults’ First Amendment rights.[4] The Supreme Court has repeatedly emphasized that regardless of the government’s interest in protecting children, it may not “reduce the adult population . . . to . . . only what is fit for children.”[5] “ ‘Regardless of the government’s interest’ in protecting children, ‘the level of discourse reaching a mailbox cannot be limited simply to that which would be suitable for a sandbox.’ ”[6]

↑Id. (upholding statute prohibiting sale of obscene — as to minors — printed material to minors under seventeen years of age whether or not it would be obscene to adults); see also Federal Comm. Comm’n v. Pacifica Found., 438 U.S. 726 (1978) (full-text) (upholding FCC finding that broadcast of radio monologue containing references to excretory or sexual activities or organs was “patently offensive” because it was broadcast in the afternoon when children are in the audience); Action for Children’s Television III v. Federal Comm. Comm'n, 58 F.3d 654, 664-65 (D.C. Cir. 1995) (full-text) [hereinafter ACT III] (upholding a slightly modified version of the FCC’s safe harbor rules for indecentbroadcasts based on government’s compelling interest in helping parents exercise their responsibility for their children’s well-being).

↑ In ACT III, the D.C. Circuit reviewed the case law and concluded that the Supreme Court has never required a scientific showing of psychological harm to establish the constitutionality of measures to protect minors from indecent speech: “Congress does not need the testimony of psychiatrists and social scientists in order to take note of the coarsening of impressionable minds that can result from persistent exposure to sexually explicit material just this side of legal obscenity.” 58 F.3d at 662. It remains to be seen, however, whether the courts would require scientific evidence of harm caused by media violence in order to establish a compelling government interest.

↑See, e.g., United States v. Playboy Entertainment Grp., 529 U.S. 803 (2000) (full-text); Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) (holding that statute intended to protect minors from harmful communications over the Internet violated the First Amendment in part because the statute suppresses a large amount of speech that adults have a constitutional right to send and receive); see alsoSable Comms. v. Federal Comm. Comm’n, 492 U.S. 115, 128 (1989(full-text); Erzoznick v. Jacksonville, 422 U.S. 205, 213-14 (1975) (full-text) (striking down ordinance banning nudity in outdoor movie theaters because “[s]peech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them”).

↑Reno, 521 U.S. at 844 (citations omitted); see also Interstate Circuit, Inc. v. Dallas, 390 U.S. 676 (1968)(full-text) (invalidating a municipal ordinance that established a local classification board to rate movies as either “suitable for young persons” or “not suitable for young persons” on vagueness grounds).